Millennium Films Goes After Verystream, Streamango, and Others
Millennium Films and its daughter companies have been rather active with their anti-piracy efforts in recent months.
The movie companies have targeted some of the largest piracy apps and websites in court with the ultimate goal of shutting them down.
Last week this resulted in a major success when the popular app CotoMovies decided to shut down. This was a direct result of legal pressure from Millennium Films which, in the process, brokered an unusual deal.
In addition to shutting down and issuing a public apology, CotoMovies confirmed that it will share user data with the movie companies. According to the movie company’s attorney, Kerry S. Culpepper, this data can “more than likely” be used to go after users of the streaming piracy app.
While no further details have emerged since, the CotoMovies aftermath continues. A few days ago Millennium Films obtained a subpoena which requires Cloudflare to hand over the personal details of people connected to several file-hosting and streaming sites.
These targets include Verystream and Streamango, two very popular hosting services with millions of users each, which were reportedly used by CotoMovies to serve videos. The other sites, Fembed, VShare, Vidlox, Flix555, Streamplay, and 0123movies, all have a CotoMovies connection as well.
“The above web domains have been identified as streaming copies of Owner’s motion picture(s) and supplying said streams to the piracy app ‘CotoMovies’,” Culpepper informed the Hawaii Federal Court.
Culpepper requests the name, address, telephone, email, payment records, and IP address log history for each associated customer. This will likely be used to conduct follow-up investigations.
The services and sites are informally accused of making Millennium’s copyrighted content available without permission. That said, it’s not clear whether the operators of these domains can be held directly liable. After all, most sites rely on user-uploaded content.
Millennium, however, seems determined to keep digging for more information, perhaps hoping that more apps and services will fold.
“Millennium greatly values their and other’s intellectual property. Millennium cannot keep making new movies if people steal Millennium’s movies through apps like these,” Millennium Media co-president Jonathan Yunger informed TorrentFreak last week, following the CotoMovies shutdown.
A copy of the subpoena directed at Cloudflare is available here (pdf).
Xtream Codes IPTV System Targeted in Massive Police Operation (Updated)
Reports of legal action and law enforcement activities against IPTV services and providers are a regular occurrence but news coming out of Italy this morning is particularly interesting.
According to the Guardia di Finanza (GdF), a law enforcement agency under the authority of the Minister of Economy and Finance, a huge operation is underway to target and dismantle the software service known as Xtream Codes.
What makes the case unusual is that Xtream Codes isn’t an IPTV provider as such. Usually operating from Xtream-codes.com, the company behind the software/system offers a comprehensive package that allows people to manage their own IPTV reselling service and its customers.
The system is subscription-based, starting at around 15 euros per month and running to 59 euros per month for the powerful “all-in-one” solution.
The Guardia di Finanza say that 100 officers from its Special Unit for the Protection of Privacy and Technological Fraud (NSPFT) are taking part in the operation to take Xtream Codes down.
Early reports suggest that the system has been “seized”, allegedly preventing 700,000 users from accessing the platform. Xtream Codes itself recently reported having more than 5,000 clients servicing in excess of 50,000,000 end clients.
The Italian police unit is describing Xtream Codes as an international criminal group that’s being targeted not only in Italy but with simultaneous searches in the Netherlands, France, Germany, Greece and Bulgaria.
Xtream Codes is registered as a company in Bulgaria, has a local VAT number, and lists an address in Petrich for its offices. According to its now-disappeared website, it was founded by two students. Police say that 25 “managers” have been identified but there’s no specific mention of any arrests.
Disruption is already being reported by some IPTV sellers utilizing the Xtream Codes system. Authorities in Italy are set to provide more information on the operation this morning so we’ll update this article as more news comes in.
Update1: A video made available by the GdF in respect of the above-detailed operation is embedded below. It is likely to cause confusion due to the depiction of what appears to be a ‘pirate’ IPTV provider being taken down. (see additional update below video)
Update2: According to an announcement by EU agency Eurojust, the operation is broader than the targeting of Xtream Codes alone.
“A multi-country action day coordinated by Eurojust in The Hague led to the dismantling of an international criminal network committing massive fraud with pay-TV, which shows organized crime expanding its illegal activities to large-scale violations of audiovisual copyright,” the statement reads.
“The damage caused by the criminal gang amounts to approximately €6.5 million, jeopardizing the existence of many legal providers of pay-TV on the market. More than 200 servers were taken offline in Germany, France and the Netherlands, and over 150 PayPal accounts of the criminals were blocked.”
Update3: Zougla.gr has obtained a chart with details of the people and infrastructure targeted
These examples show that easyDNS is no stranger to legal pressure, but a recent request from a German law firm was a bit over the top, even by easyDNS’ standards.
The company recently received a copyright notice from the German law firm Fechner Legal, ordering easyDNS to take down a URL of one of its clients who allegedly posted a copyright-infringing image. In addition, the notice came with a settlement offer, urging the registrar to pay €1,481 in damages and fees.
The letter, which was initially sent to the wrong email address years ago, came through the postal mail. EasyDNS has no plans to pay up or expose its customer, as the law firm requested. However, it did send a reply asking for a digital copy so it could be forwarded to its customer, as is standard practice.
Instead of sending over the requested digital copy, the law firm replied with a threat. Citing German jurisprudence, attorney Robert Fechner urged easyDNS to hand over the name and email address of the allegedly-infringing customer, or else.
The” or else,” in this case, would come in the form of a criminal complaint.
“If you fail to comply with the law, further proceedings will be to file a criminal complaint against you in order to acquire this information on the basis of § 14 II TMG. In this case, additional damages due to your uncooperative and unlawful behavior will be claimed.” Fechner wrote.
Despite the threat of a criminal complaint, easyDNS still doesn’t plan to hand over the name and email address of its customer. The company’s CEO stresses that it only complies with the law of the country where it’s incorporated, which is Canada.
Simply handing over personal information might violate Canadian privacy law, easyDNS stresses. This means that, if Fechner Legal wants the personal information of the customer in question, it has to obtain a valid court order, subpoena or warrant in the Province of Ontario.
“It’s almost as if Herr Fechner doesn’t understand that Canada is a completely different country than Germany, and thus businesses operating here are subject to Canadian, not German law,” Jeftovic notes.
“We have further advised Herr Fechner that both easyDNS and our lawyers take a dim view of being threatened with a criminal complaint over something like this and we wonder out loud if the German bar association would have anything to say about one of their own abusing their position and misrepresenting the law in this manner,” he adds.
In any case, it’s clear that as a third-party registrar, easyDNS isn’t going to take any action without a proper court order. This means that the allegedly infringing URL remains online for now, just like The Pirate Bay.
Swiss Copyright Law: Downloading Stays Legal, No Site Blocking
Sitting in the heart of Europe geographically but outside the European Union politically, Switzerland is largely free to make its own legislation.
On the copyright front, this has brought the country out of line with standards adopted by its neighbors, something that has drawn criticism from entertainment industry companies, particularly those in the United States.
In 2017, proposals to amend the country’s copyright laws were drafted but they failed to fully address key complaints from the United States Trade Representative (USTR) made on behalf of rightsholders.
A major complaint is that the country’s private copying exception shouldn’t apply to content obtained from illegal sources, i.e pirate copies of movies circulating on peer-to-peer networks such as BitTorrent. The USTR also had issues with the current liability framework for sites and hosting services that facilitate and profit from piracy.
After a long trip through the corridors of power, Switzerland’s National Council adopted amendments to copyright law Monday but at first view, there seems little to please the United States.
First up, regular citizens who download copyrighted content from illegal sources will not be criminalized. This means that those who obtain copies of the latest movies from the Internet, for example, will be able to continue doing so without fear of reprisals. Uploading has always been outlawed and that aspect has not changed.
Second, the drive to have pirate site-blocking introduced into Swiss law has been rejected. Unlike elsewhere in Europe, where the practice is widespread and supported by EU law, ISPs will not be required to block ‘pirate’ platforms as some copyright holders had demanded.
On the hosting and liability front, there will be changes, but at this early stage, it’s unclear how that will play out on the ground.
SwissInfo reports that the reforms will force local hosting providers to remove illegal content from their servers but adds that parliament rejected rules that would compel online platforms to check whether uploaded content is copyrighted.
A “take-down-stay-down” system had been championed (which would presumably require content to be checked against previous takedowns) but elsewhere it’s claimed that the new legal framework “favors self-regulation” to fight piracy at the hosting level.
While an extension from 50 to 70 years copyright protection for musical and photographic works will be welcomed by copyright holders, the failure to outlaw downloading of pirated content for personal use will be absolutely unacceptable to the United States and the MPAA in particular.
TekSavvy Protests Push for Pirate Site Blocking in Court
Pirate site blockades are gradually spreading across the globe. Thus far, Canada hasn’t joined the movement but that’s something Bell, Rogers, and Groupe TVA hope to change.
In June, the three companies filed a lawsuit against the operators of a ‘pirate’ IPTV service operating from the domain names GoldTV.ca and GoldTV.biz. The companies argued that the service provides access to their TV content without licenses or authorization.
Among other things, the rightsholders requested an interim injunction to stop the operators, who remain unidentified, from continuing to offer the allegedly-infringing IPTV service. This was granted last month, but despite the order, some of the infrastructures remained available.
This resulted in a new request from the media giants, which could potentially lead to the first-ever pirate site blocking order in Canada. Specifically, the companies are calling for an interlocutory injunction order that would require several Canadian ISPs to block GoldTV domain names and IP-addresses.
The request was discussed in Federal Court last Thursday and Friday. Since Rogers and Bell are also ISPs, the companies are also listed as respondents. Obviously, they didn’t object to their own demands. Similarly, there are no objections from Shaw, Eastlink, Fido, SaskTel, Telus, and Videotron either.
With input from some of the Internet providers, the rightsholders drafted a blocking order that they hope to have approved by the Federal Court. It lists several domain names and IP-addresses of the pirate IPTV service and allows for more to be added.
The blocking technology that’s described in the order is fairly straightforward. Domain names would have to be targeted through DNS blocking or re-routing, and non-shared IP-addresses would have to be blocked or re-routed as well. All ISPs would be permitted to establish their preferred methods, as long as they are effective.
Thus far there hasn’t been much opposition from ISPs. The only company that substantially objects to the proposed site-blocking scheme is TekSavvy.
In written comments to the Court, the ISP points out that the request comes at a curious time as Canadian lawmakers are reviewing the appropriateness of such measures, as part of the Broadcasting and Telecommunications Legislative Review. Issuing a precedential injunction before this review is complete would be inappropriate, TekSavvy argues.
Aside from leap-frogging the ongoing legislative process, the ISP also points out that the site-blocking measures violate net neutrality.
“The plaintiffs seek this Court’s assistance to implement a draconian remedy that runs directly counter to the legislatively established principle of net neutrality,” TekSavvy notes in its written comments.
The ISP doesn’t believe that the blocking measures will be very effective either. There are plenty of workarounds available, for example. The company further notes that it’s unclear whether GoldTV causes any harm and adds that the rightsholders have plenty of other options to go after the service.
For example, they could target the sites through less invasive measures. By contacting its payment provider or hosting company, for example, or going after the Canadian domain name registry.
“[The plaintiffs] ask this Court to deputize TekSavvy and other ISPs to protect the plaintiffs’ profits against some hypothetical (and unknowable) erosion from GoldTV’s services, yet they have not taken some of the most basic self-help steps open to them,” TekSavvy notes.
Overall, the ISP sees website blocking as a draconian measure. While it seems fairly small and directed at a small service that’s no longer widely available, Teksavvy fears that granting the order will open the floodgates to much broader blocking requests.
“If the plaintiffs were successful in obtaining a site-blocking order in this case, there is no question that they would use it as a precedent to obtain other site-blocking orders, whether in respect of copyright infringement or otherwise.”
“TekSavvy could be faced with hundreds and even thousands of websites to block and monitor, exponentially increasing the costs of operating and maintaining a site-blocking system and overwhelming TekSavvy’s capacity,” the company adds.
As such, Teksavvy asks the Federal Court to dismiss the motion. It’s the only third-party company that has done so. Fellow ISP Distributel also objected to the proposed language in the motion, but its complaint only deals with how ISPs are compensated for their efforts.
The Wire Report notes that the Federal Court gave all parties until Wednesday to come to an agreement on the language of the proposed order. It’s clear, however, that TekSavvy is not coming aboard.
After the hearings, the Federal Court will eventually have to decide whether to grant the blocking order or not. That’s expected to take a few more weeks.
A copy of the proposed blocking order, which may be changed going forward, is available here (pdf). TekSavvy’s written responses are available here (pdf) and a copy of the affidavit of Paul Stewart, TekSavvy’s VP of Technology, can be found here (pdf).
Top 10 Most Pirated Movies of The Week on BitTorrent – 09/16/19
This week we have three newcomers in our chart.
Dark Phoenix is the most downloaded movie.
The data for our weekly download chart is estimated by TorrentFreak, and is for informational and educational reference only. All the movies in the list are Web-DL/Webrip/HDRip/BDrip/DVDrip unless stated otherwise.
RSS feed for the articles of the recent weekly movie download charts.
Lawsuit Targets Best Buy & Staples For Selling “Pirate Devices” & Giving “Piracy Advice”
Thousands of retailers around the world sell Android-based set-top devices that are able to stream Netflix and other services to customers’ homes.
However, an intriguing lawsuit filed in Canada last week alleges that employees at some companies went too far with their sales promotion pitches by pushing the products for infringing purposes while advising potential buyers on how to pirate content with them.
The lawsuit, filed in Federal Court September 11 by Super Channel owner Allarco Entertainment, targets Staples Canada, Best Buy Canada, London Drugs, Canada Computers, several related companies and up to 50,000 ‘John Doe’ customers.
Allarco Entertainment alleges that one or more of the retailers and their staff (collectively described as “4Stores”) promoted, encouraged, or instructed prospective buyers of Internet streaming devices on how to use and/or modify them to obtain copyright-infringing content. As a result, the devices are described as “Pirate Devices” throughout the lawsuit.
On a website promoting the case, Allarco has published a video as part of its 19-month-long “4 Stores Investigation” which claims to show employees at the defendant companies selling “pirate devices” in a way that contravenes several aspects of local law.
The company says it has 100 hours of undercover recordings to back up its claims. The short video currently available has recordings of alleged staff members advising users to install Kodi, use Google to find Kodi “setup videos”, or even visit other sellers operating elsewhere that will configure the devices for piracy.
Super Channel CEO Don McDonald told CBC that his company showed the video to the four retailers in the spring but that didn’t bring the alleged behavior to an end.
“I wanted them to be step up and be a champion in changing the culture. They didn’t see the light,” he said. “We want the stores to stop. We want the stores to say, ‘Hey this is wrong’.”
While the lawsuit continually describes the set-top boxes as “Piracy Devices” – some of which had Kodi pre-installed – there’s no information in the lawsuit or accompanying video that specifically states that any had dedicated piracy software or services embedded at the point of sale.
That important point will probably become evident as the lawsuit progresses but the complaint does note that “one or more” defendants breached the Copyright Act by “showing pirated programming to customers in their stores.”
The lawsuit itself goes straight for the jugular, reading not dissimilar to many others that have previously targeted sellers of unambiguous dedicated ‘pirate’ devices or services.
“The devices which are the subject of this action have been programmed to steal programming i.e. view the Plaintiffs Programming without authorization and without paying for it,” the complaint reads.
“The 4Stores Defendants or one or more of them have offered for sale, sold, leased and continue to sell or lease Pirate Devices to John Doe Customers and advised, educated, counseled, encouraged, directed, induced, enabled and authorized John Doe Customers to achieve, download, install and operate services that result in the operation of the Pirate Devices and/or that enable and allow the John Doe Customers to access the Infringing Content.”
The complaint, which also references up to 50,000 ‘John Doe’ customers as defendants, states that the 4Stores know their identities and as such, they will “be identified and added as identified parties following disclosure.” Allarco is seeking an order to have these customers served by mail.
The TV company states that the alleged actions of 4Stores detailed above were designed to “encourage and increase” the sale of ‘Pirate Devices’, which would not have been sold had it not been for the “education” provided by the 4Stores staff. When combined, this created or contributed to a culture of “widespread copyright infringement” causing damage to the plaintiff.
The complaint states that the customers of 4Stores who bought such devices and accessed infringing content breached the Copyright Act. At this stage, however, there’s no information that any evidence has been gathered to prove that happened. Nevertheless, the complaint alleges Contributory Infringement by 4Stores as a result of the companies inducing customers to infringe.
Allarco further claims that the 4Stores defendants sold devices that are “designed or produced primarily for the purposes of circumventing a technological protection measure”, and/or “the uses or purposes of which are not commercially significant other than when used for the purposes of circumventing a technological protection measure.”
Finally, there are additional claims that the defendants breached the Radiocommunication Act, Trademark Act (also with damage to goodwill), engaged in intentional interference with business, unjust enrichment, and counseling to commit an offense.
In summary, Allarco is demanding interim, interlocutory, and permanent injunctions including, but not limited to, preventing the defendants from “communicating or facilitating the communication” of its works without permission, including by “configuring, advertising, offering for sale or selling Pirate Devices.”
It also wants the Court to issue a ban on the 4Stores from “teaching, inducing, coaching or demonstrating to others including their own staff, friends and families how to steal or pirate the Plaintiff’s Works.”
The Allarco Entertainment / Super Channel complaint can be found here (pdf)
The report provides an overview of the latest anti-piracy achievements of copyright holders and also signals some emerging threats. It seems to be written mostly based on input from large rightsholders, which can make it a bit one-sided.
The overall theme is that piracy and counterfeiting remain a major problem and that, as a “world class IP enforcement regime,” the UK takes a leading role in the world to tackle it going forward.
A few days ago we reported on an exemplary section from the report where the Premier League highlighted its key successes. The full document is filled with similar examples and is worth a read, but there is one issue that stood out which we would like to highlight separately.
In the section where the results of PRS for Music, the UK’s leading collection society, are summarized there is a hint of self-reflection. As reported in the past, there were signs that BitTorrent piracy is increasing again, and according to the UK Government’s report, the industry may be to blame.
Apparently, piracy traffic may be rising again because the content that’s being offered on legal platforms is becoming more and more fragmented.
In other words, as more legal services have exclusive releases, it’s harder for people to get everything they want in one place. Instead of signing up for paid subscriptions at a handful of services, these people could then turn back to piracy.
Or as the Annual IP crime and enforcement report puts it:
“There also appears to be a resurgence in torrent traffic, notwithstanding the apparent demise of peer-to-peer file sharing a few years ago. A likely reason for this is the fact that more legitimate platforms are hosting exclusive content and subscribers may not necessarily have access to all the content they want to consume.”
The paragraph above is listed in the PRS section of the report which leads us to believe that it comes directly from the music group. We reached out to PRS to find out more but the organization said that it couldn’t comment on it. A subsequent request to clarify whether this is PRS’s position returned a “no comment” as well.
Again, we should stress that the fragmentation comment is just a tiny quote from a 132-page report. It doesn’t reflect the general theme that piracy needs to be addressed through comprehensive and multi-faceted enforcement strategies. However, at least there appears to be some room for self-reflection.
This isn’t the first time that increased fragmentation has been mentioned as a potential problem, but these type of comments generally don’t originate from governments or rightsholders.
Exclusive releases are particularly prevalent in the video industry today, where there’s a myriad of exclusive streaming services. How this will affect overall piracy rates in the years to come remains to be seen, but it’s certainly not something that can be easily ignored.
UK ‘Pirate’ IPTV Users’ Favorite Channels “Are Free-to-Air”
While the TV licensing system in the UK is viewed as an unpopular tax by many citizens, millions hand over money every year in order to receive broadcasts into their homes.
For the sum of £154.50 for a color TV license and £52 for a black and white equivalent, residents can potentially obtain access to dozens of channels via satellite (Freesat) or antenna (Freeview), none of which come with a subscription charge. In fact, those who don’t pay the license fee can still receive them, just not entirely legally.
Of course, those subscribing to a ‘pirate’ IPTV provider gain access to thousands of channels, including all the premium channels that would otherwise add hundreds of pounds of costs to the average bill.
There’s no doubt that gaining access to Sky’s premium offerings for next to nothing is an attractive proposition for customers. However, a UK-based IPTV provider informs TorrentFreak that these aren’t always the most popular channels with his subscribers.
Perhaps surprisingly, when looking at the Top 10 most-watched channels on the service, BBC One, BBC Two, ITV, Channel 4 and Channel 5 all get a prominent position. Every single one is not only available for free (license permitting) via satellite or antenna but also available via the Internet for UK residents.
TF was able to review data from the IPTV provider’s panel which listed the service’s most popular streams from a few weeks ago. It showed that the most-viewed channel was ITV HD with just over 16%, with BBC1 HD in second place with close to 13%. National Geographic, a non-free to air channel, sat in third with just under 10%, closely followed by free to air Channel 4 HD.
Of the top 12 most popular channels listed in a provided chart, six are already free to air – ITV, BBC1 One, Channel 4, BBC Two, 4seven, Channel 5, ITV2, E4, Quest Red, and Quest. So why the inflated interest in channels already covered by a TV license and free-to-air?
The IPTV provider said it polled some customers, with a number of interesting reasons reportedly coming up, most of which appear to center around service-related issues. Firstly, and perhaps unsurprisingly, users of Freeview complained about not being able to get a good enough signal.
The digital Freeview service is supposedly available to 98% of the population but anecdotal evidence suggests that many are left with a poor signal, a reduced channel offering, picture break up, or not being able to receive the service at all.
Freesat (satellite) users can usually overcome most of these issues but many televisions don’t come with an appropriate tuner and in all cases, an external satellite dish must be installed, which presents another barrier to entry.
IPTV services, on the other hand, require a broadband connection and a cheap subscription, no external equipment (satellite dishes, antenna, or tuners) required.
It could be countered that several of the main BBC channels can be acquired via the Internet using the BBC iPlayer, which unquestionably provides a first-class service. However, online offerings from ITV (ITV Hub), Channel 4 (All 4), and Channel 5 (My5) only come in SD quality and in some cases, that’s a best-case scenario.
Most of the rest of the channels in the ‘free’ range (outside the regular TV license fee) have no online offer at all but an IPTV service can provide them all, in most cases in HD quality.
Only adding to the hassle of going legal is the fact that most if not all of the above channels’ online offerings now require registration, meaning that users have to have accounts with them all to receive them on a TV. On the other side, a subscription with an IPTV provider requires a single sign-up.
According to the provider, users don’t like to have accounts with all of these different official suppliers and they don’t enjoy the low-quality images on offer from their online portals, even if they are free to access. They also prefer the flexibility of being able to watch channels on any device they like, rather than being restricted to the platforms supported by various providers.
A UK user with experience of all of the systems above confirmed that while having Freeview or Freesat is a nice option, switching from app to app to receive other channels on various devices is a sub-standard experience when compared to that offered by unlicensed providers. He also questioned whether “any harm was being done” to the legitimate providers by accessing their channels from an IPTV provider.
“I pay my license for the BBC and I don’t use up any of their Internet [bandwidth]. I watch all the adverts on everything else same as everyone. Where’s the negative, I don’t see any?” he said.
In common with the provider we spoke with, the TV viewer pointed out that having everything in one place (a single IPTV subscription) is much more convenient than having to switch around various sources, even if that means paying a few pounds per month.
So while some people clearly latch on to unlicensed IPTV subscriptions for premium content usually offered by companies such as Sky, it seems that at least, in this case, convenience is also playing a big factor.
Judge Recommends to Deny Summary Judgment Against Tor Exit Node Operator in Piracy Case
Tor is an anonymity tool used by millions of people. Dubbed the “Onion Router”, it operates by sending traffic through various nodes, after which it enters the public Internet again.
This setup makes the source of the traffic pretty much impossible to trace. However, it also means that people who operate a Tor exit node have their IP-address associated with a lot of traffic they’re not the source of.
When pirates use Tor, for example, it will appear as if the copyright-infringing activity comes from the exit node address. While the operators are generally aware of this, recent history has shown that his can lead to serious liability issues.
This is what Oregon resident John Huszar found out the hard way.
Back in 2015, the company behind the movie Dallas Buyers Club filed a federal lawsuit against the IP-address 188.8.131.52. A few months later, this complaint was amended to list “Integrity Computer Services” as the defendant, and in 2016, it was eventually replaced with the company’s owner, John Huszar.
While Huszar denied that he personally downloaded the film, there was a problem. Early on in the case, the filmmakers served a request for admissions, asking the defendant to respond to several statements. This request remained unanswered, which was a mistake, as it typically means that the court can then assume the statements are true.
Dallas Buyers Club used this to its advantage. Among other things, the admissions stated that Huszar unlawfully distributed a copy of the Dallas Buyers Club movie, which seemed to open the door to a substantial financial claim.
That would be true in most cases, but Huszar is not the only one who made a crucial error – Dallas Buyers Club did the same. As noted by US District Judge Michael Simon, earlier this year, Huszar wasn’t yet a named defendant when the filmmakers issued their request for admissions.
Following this conclusion, Judge Simon sent the case back to Magistrate Judge John Acosta, who this week issued his report and recommendations on the motions for summary judgment from both the plaintiff and the defendant.
First up is the film company, which requested a summary judgment finding that Huszar is guilty of copyright infringement. This request relied pretty much exclusively on the admissions which are no longer valid. As such, the motion was denied.
“It is evident Dallas’s motion was reliant on Huszar’s admissions. Judge Simon’s withdrawal of the deemed admissions based on Huszar’s failure to respond to Dallas’s requests for admissions was fatal to Dallas’s motion,” Magistrate Judge Acosta writes in his recommendation.
While this is great news for the defendant, there was a disappointment as well. Huszar also requested summary judgment, ruling that he is not liable. After a careful review, Judge Acosta denied this too.
Among other things, Huszar claimed that he was shielded by the DMCA because he was acting as an ISP. However, Judge Acosta notes that to benefit from such protections, he has to show that he’s eligible for such immunity. This includes having a repeat infringer policy, of which the court found no evidence.
Huszar further argued that the monitoring software used by the filmmakers was unreliable. While the defense provided an expert report to back this up, Dallas Buyers Club submitted an opposing report, which leads Judge Acosta to the conclusion that summary judgment based on the reliability of the evidence is not appropriate.
This means that after a battle of almost five years in court, the case can still go either way. Judge Acosta’s recommendations are not the final judgments. They will be referred to a District Judge who has the final say.
After that, the case will likely move to trial. If that the case, it will be up to a Jury to decide whether the Tor exit node operator is guilty or not.
A copy of Magistrate Judge John Acosta’s findings and recommendations is available here (pdf).